State Ex Rel. Thomas v. Brenner

Supreme Court of Oklahoma

State Ex Rel. Thomas v. Brenner

1935 OK 373, 41 P.2d 705, 171 Okla. 320, 1935 Okla. LEXIS 194

CourtSupreme Court of Oklahoma

DecidedApril 2, 1935

DocketNo. 25238.

StatusPublished

Cited by9 cases

This text of 1935 OK 373 (State Ex Rel. Thomas v. Brenner) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State Ex Rel. Thomas v. Brenner, 1935 OK 373, 41 P.2d 705, 171 Okla. 320, 1935 Okla. LEXIS 194 (Okla. 1935).

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Opinion

GIBSON, J.

This is an appeal from a judgment of the district court of Kay county in an action in which it was sought to obtain a writ of mandamus requiring defendants in error, wlm constituted tbe board of commissioners of tbe city of Blackwell, to “comply with their statutory duty and reinstate and to recognize” the relators as members of the fire department of the city of Blackwell, “or to show cause why” they, the relators, “should not be reinstated and recognized” as members of said fire department. The prayer was.denied, and’ the relators appealed to this court.

Relators contend that section 6085, O. S. 1931, provides the tenure of office of the members of all’ paid fire departments, and that such members hold their positions “unless removed for good and sufficient cause” without regard to the tenure of office of the mayor and members of the city council.

They further contend that the cited section is applicable to a city operating under a charter, as is the city of Blackwell, and that it controls notwithstanding the provisions of section 13, article 2, of the charter of the city of Blackwell, which provides that the appointed officers and employees of said city “shall hold their positions at the will and pleasure of the appointive power.” It is not necessary to determine those questions here.

Assuming for the purpose of this case, but not deciding, that section 6085, supra, is controlling and provides the tenure of office of tbe relators, yet it must be conceded that such tenure could be terminated and they could be “removed for good and sufficient cause.” The writ of mandamus is not one of right. Before it will issue a clear legal right thereto must be shown. Stearns, Mayor, v. Sims, 24 Okla. 623, 104 P. 44, 24 L. R. A. (N. S.) 475; City of Guthrie v. Stewart, Co. Treas., 45 Okla. 603, 146 P. 585; Champlin v. Carter, 78 Okla. 300, 190 P. 679.

When the relators applied for the writ of mandamus they assumed the burden of showing that they had a clear legal right to the relief prayed for. The trial court found that they had not sustained that burden, and from an examination of the record we find that relators did not establish a clear legal right to the relief sought, and that the trial court did not err in denying the same.

The judgment of the trial court is affirmed.

McNEILL, C. J., and RILEY, BUSBY, and PHELPS, JJ., concur.

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GIBSON, J.

This is an appeal from a judgment of the district court of Kay county in an action in which it was sought to obtain a writ of mandamus requiring defendants in error, wlm constituted tbe board of commissioners of tbe city of Blackwell, to “comply with their statutory duty and reinstate and to recognize” the relators as members of the fire department of the city of Blackwell, “or to show cause why” they, the relators, “should not be reinstated and recognized” as members of said fire department. The prayer was.denied, and’ the relators appealed to this court.

Relators contend that section 6085, O. S. 1931, provides the tenure of office of the members of all’ paid fire departments, and that such members hold their positions “unless removed for good and sufficient cause” without regard to the tenure of office of the mayor and members of the city council.

They further contend that the cited section is applicable to a city operating under a charter, as is the city of Blackwell, and that it controls notwithstanding the provisions of section 13, article 2, of the charter of the city of Blackwell, which provides that the appointed officers and employees of said city “shall hold their positions at the will and pleasure of the appointive power.” It is not necessary to determine those questions here.

Assuming for the purpose of this case, but not deciding, that section 6085, supra, is controlling and provides the tenure of office of tbe relators, yet it must be conceded that such tenure could be terminated and they could be “removed for good and sufficient cause.” The writ of mandamus is not one of right. Before it will issue a clear legal right thereto must be shown. Stearns, Mayor, v. Sims, 24 Okla. 623, 104 P. 44, 24 L. R. A. (N. S.) 475; City of Guthrie v. Stewart, Co. Treas., 45 Okla. 603, 146 P. 585; Champlin v. Carter, 78 Okla. 300, 190 P. 679.

When the relators applied for the writ of mandamus they assumed the burden of showing that they had a clear legal right to the relief prayed for. The trial court found that they had not sustained that burden, and from an examination of the record we find that relators did not establish a clear legal right to the relief sought, and that the trial court did not err in denying the same.

The judgment of the trial court is affirmed.

McNEILL, C. J., and RILEY, BUSBY, and PHELPS, JJ., concur.

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1935 OK 373, 41 P.2d 705, 171 Okla. 320, 1935 Okla. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-thomas-v-brenner-okla-1935.

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